Bombay High Court
Shahaji Ashruba Falake And Another vs The State Of Maharashtra on 11 March, 2025
Author: R. G. Avachat
Bench: R. G. Avachat
2025:BHC-AUG:6990-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.675 OF 2021
1. Shahaji Ashruba Falake
Age: 36 yrs., Occu. Labourer
R/o. Pokhari, Tq. & Dist. Beed
2. Baban Ashruba Falake
Age: 42 yrs. Occu. Labourer
R/o. As above .... Appellants
Versus
The State of Maharashtra
Through Police Inspector
Neknoor Police Station
Tq. & Dist. Beed .... Respondent
_____________________________________________________________
Appearance :-
Mr. Rajendraa Deshmukh [Senior Advocate] a/w Mr. Shashikant E.
Shekade, Advocate for the Appellants
Mr. N. S. Tekale, APP for the Respondent - State
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved On : 27/02/2025
Pronounced On : 11/03/2025
JUDGMENT :
[PER NEERAJ P. DHOTE, J.]
1. This Criminal Appeal under Section 374[2] of the Criminal
Procedure Code, 1973 [hereinafter referred to as 'Cr.P.C'] is
directed against the Judgment and Order dated 07/12/2021,
passed by the learned Additional Sessions Judge, Beed, in Sessions
Case No.87/2016. The Appellants are convicted and sentenced as
under :-
"A. Accused No.1 Shahaji Ashruba Falake and Accused No.2
Baban Ashruba Falake are convicted for the ofence of
murder PUS 302 r.w. 34 of IPC and each of them is
sentenced to sufer simple imprisonment for life and
imposed with fne of Rs.5,000/- [Rs. Five Thousands only]
2 Criappeal-675-2021.odt
each. In default of payment of fne, the defaulting
accused shall sufer further simple imprisonment of six
months.
B. Their bail-bonds are surrendered.
C. Accused No.1 Shahaji Ashruba Falake was in jail from
14.05.2016 to 25.11.2016. Accused No.2 Baban
Ashruba Falake was in jail from 22.05.2016 to 17.10.2016.
Each of them is entitled to set-of for the periods undergone
in the jail. It be given.
D. .... .... .... .... .... .... .... .... ....
E. .... .... .... .... .... .... .... .... ....
F. .... .... .... .... .... .... .... .... ....
G. .... .... .... .... .... .... .... .... ....
H. .... .... .... .... .... .... .... .... .... "
2. The Prosecution's case, as revealed from the Police Report, is
as under :-
[I] Manisha Shahaji Falake [hereinafter referred to as 'the
Deceased'] was married to Appellant No.1 [Shahaji Ashruba Falake]
for last eight [8] years from the date of incident. They were having
four [4] daughters from the wedlock. One of the daughter was no
more. Appellant No.2 [Baban Ashruba Falake] was the brother of
Appellant No.1. Appellant No.2 and the in-laws of Deceased were
residing separately. The Deceased was asking for separate share in
the agricultural feld from the in-laws and Appellant No.2 [Baban
Ashruba Falake]. Due to the said demand by the Deceased,
Appellant No.1 [Shahaji Ashruba Falake], Appellant No.2 [Baban
Ashruba Falake] and mother-in-law of the Deceased used to quarrel
with her. In the earlier morning of 13/05/2016, when the Deceased
was sleeping with her daughters in her house, Appellant No.1
[Shahaji Ashruba Falake] poured kerosene from Can on the
Deceased and Appellant No.2 [Baban Ashruba Falake] ignited the
fre. The Deceased shouted for help and the neighbouring persons
doused the fre on her person by water. The Deceased was taken to
the Government Hospital at Beed for treatment. The Policeman
available at the Government Hospital, Beed, recorded the
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statement of Deceased on 13/05/2016, wherein, she deposed of
the incident. Her said statement was sent to the concerned Police
Station and Crime No.68/2016 came to be registered against the
Appellants and mother-in-law of the Deceased for the ofence
punishable under Sections 307, 498-A and 506 read with Section 34
of the Indian Penal Code, 1860 [hereinafter referred to as 'I.P.C.'].
After some time, the Executive Magistrate recorded the statement
of Deceased, wherein, she deposed of the incident.
[II] The Investigating Ofcer visited the spot of incident and
prepared the Spot Panchnama. The Appellants and acquitted
Accused came to be arrested and their clothes were seized. During
the treatment, Deceased succumbed to the burn injuries. The
Inquest was prepared. The dead body was referred for
Postmortem. The Postmortem revealed 96% superfcial to deep
burns and cause of death as "due to 96% burn with septicemia". The
statement of witnesses were recorded. The Articles seized during
the course of investigation were referred to the Chemical Analyzer.
The relevant documents came to be collected and Charge-sheet
came to be submitted against the Appellants and mother-in-law of
the Deceased for the ofence punishable under Sections 498-A, 302
and 506 read with Section 34 of I.P.C.
[III] On committal, the learned Trial Court framed the Charge
against the Appellants and acquitted Accused for the ofence, for
which, the Charge-sheet was fled. The Appellants and acquitted
Accused denied the Charge and claimed to be tried. To prove the
Charge, Prosecution examined in all nine [9] witnesses and brought
on record the relevant documents. After submitting the evidence
closure pursis at Exhibit - 116 by the Prosecution, the learned Trial
Court recorded the statements of the Appellants and acquitted
Accused under Section 313[1][b] of Cr.P.C. Their defence was of
4 Criappeal-675-2021.odt
false implication. After hearing both the sides and appreciating
the evidence on record, the learned Trial Court passed the
impugned Judgment and Order, convicting the Appellants as
referred above in Paragraph No.1 and acquitted the mother-in-law
of the Deceased.
3. It is submitted by the learned Senior Advocate for the
Appellant that, the father of Deceased and the witness, who
carried the Deceased to the Hospital, did not support the case of
Prosecution. Though, two daughters of the Deceased were
sleeping with her at the time of incident, there is no evidence of
kerosene on them. The daughter, who was sleeping with the
Deceased, is not examined as the witness, though her statement
was recorded on very next day of the incident. The evidence of
treating Doctor shows that, the history given at the time of
admission of Deceased to the Hospital was, due to stove fre. The
evidence of Medical Ofcer shows that, initially, the patient was
not in a condition to give the statement, however, it has further
come in the evidence of Medical Ofcer that, the patient was in a
position to give the statement. There is no evidence to show as to
how the patient got conscious after sometime to give the
statement and therefore, the said evidence of Medical Ofcer
cannot be believed. The Deceased was the resident of a village and
the language of Dying Declarations [hereinafter referred to as 'D.D/
D.Ds'] cannot be that of the Deceased. Though the D.Ds show the
endorsements by the Doctor in respect of ftness to give the
statement, the said endorsements were taken subsequently.
Therefore, the frst D.D is shrouded with suspicion and the same
needs to be discarded.
5 Criappeal-675-2021.odt
3.1 It is further submitted by the learned Senior Advocate
for the Appellant that, the second D.D was recorded by the
Executive Magistrate. He recorded the second D.D in Question
Answer form. The Answer to Question No.12 is left blank /
unanswered. The medical evidence on record goes to show that,
the entire body of the Deceased was burnt and was wrapped in a
bandage and therefore, the thumb impression on the D.Ds
becomes suspicious. Both the D.Ds are inconsistent with each other
in respect of roles attributed to the Accused persons. The seizure
of clothes of the Appellants were after eight [8] days from the date
of incident and so, the CA reports cannot be taken into
consideration, as the possibility of tampering with the Articles
cannot be ruled out. The medical evidence do not show as to what
the injection given to the Deceased was for and an afterthought,
cooked-up story was made by the Prosecution. Hence, the Appeal
be allowed and the impugned Judgment and Order be quashed and
set aside.
3.2. In support of his submissions, the learned Senior
Advocate for the Appellant relied on the Judgment in the case of
Abhishek Sharma Vs. Sate [Govt. of NCT of Delhi], in Criminal
Appeal No.1473/2011 dated 18/10/2023.
4. It is submitted by the leaned A.P.P. that, both the D.Ds were
recorded without any delay. There are endorsements by the
treating Doctors on both the D.Ds. There is no exaggeration or
false implication in the D.Ds. The Executive Magistrate and the
Medical Ofcer were the independent witnesses and had no reason
to falsely implicate the Appellants. Both the D.Ds inspire
confdence and there is corroboration through the CA reports
showing kerosene residues on the clothes of Appellant No.1
[husband]. The Deceased's father was won-over. The learned Trial
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Court has rightly appreciated the evidence on record and passed
the impugned Judgment and order. Hence, Appeal be dismissed.
4.1 In support of his submission, the learned A.P.P. relied on
the following Judgments :-
[a] Sohan Lal alias Sohan Singh and Ors. Vs. State of
Punjab ; [2003] 11 SCC 534 ;
[b] State of Madhya Pradesh Vs. Dal Singh and
Others ; [2013] 14 SCC 159 ;
[c] Ramesh and Others Vs. State of Haryana ; [2017]
1 SCC 529 ;
5. Heard both the sides. Scrutinized the evidence on record.
6. The Appellant No.1 is the husband and Appellant No.2 is the
brother-in-law of the Deceased. There is no dispute that, the
Deceased died of burn injuries. The evidence of PW - 2 [Mahadeo
Prakash Take] shows that, in 2016, he was a Sarpanch of his village.
In the morning, on the day of incident at 7:00 a.m., when he was in
the house, he heard the chaos and so, he came out of the house.
He saw the Deceased [wife of Appellant No.1] in burning condition
near the Maruti and Vithal Temples. The people gathered and
extinguished the fre by pouring water. The Deceased sufered
burn injuries and she was taken to the Civil Hospital, Beed in a Van
of village - Limbaganesh. This evidence remained unshaken in the
cross-examination.
7. The evidence of PW - 6 [Dr. Kiran Vithalrao Sawase] shows
that, on 19/05/2016, he was attached to the Civil Hospital, Beed as
a Medical Ofcer. On that day, he received the dead body of
Manisha Shahaji Falake [Deceased] for Postmortem along with the
requisition letter at Exhibit - 85 and Inquest at Exhibit - 83. He and
Dr. Shinde conducted the Postmortem between 11:00 a.m. to 12:00
7 Criappeal-675-2021.odt
noon. The dead body was well nourished and rigor mortis was well
marked. There were 96% superfcial to deep burns. All the injuries
were antemortem. The skulls and brain were intact, pleura was
intact. Larynx, trachea and bronchi and soot particles were present
in it. Lungs were congested. Heart was flled with blood.
Abdomen wall and peritonium were intact. Stomach and intestine
were empty. Liver, pancreas, spleen and kidney were congested.
Bladder and uterus were empty. The cause of death was 'due to
96% burns with septicemia'. He prepared the Postmortem Report at
Exhibit - 102. As regards the cause of death due to the aforesaid
burn injuries is not in dispute.
8. As regards the spot of incident, in which, Deceased sufered
burn injuries, was the residence of Deceased. PW - 1 [Ajay
Vinayakrao Gujar] was a Public Servant and was directed by his
Superior to act as the panch along with one of his colleague named
Vilas Gore. Thereafter, they went to the Neknoor Police Station
and from there, they both went to the spot of incident with Police.
The spot was a house of mud consisting of one [1] room. There was
one wooden Cot and other household articles, which were
scattered. The white colour kerosene plastic Can with small
quantity of kerosene and Matchbox having some half burnt sticks
were lying in the house. The articles and soil samples from the
house were seized under the Spot Panchnama at Exhibit - 67. His
evidence is corroborated by PW - 9 [Rajendra Bhanudas Patil], who
was the Investigating Ofcer. He deposed of visiting the spot along
with the panchas, seizure of articles from the spot of incident and
preparing the Spot Panchnama at Exhibit - 67. From the tenor of
cross-examination, it is clear that, there is no dispute in respect of
the spot of incident as the residence of Deceased.
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9. The case in hand primarily rests on the D.Ds. The D.Ds are the
exceptions to the hearsay evidence and relevant pursuant to the
provisions of Section 32[1] of the Indian Evidence Act, 1872
[hereinafter referred to as 'the Evidence Act']. In the case relied
upon by the learned Senior Advocate, by considering the previous
Judgments of the Hon'ble Supreme Court of India, it is observed in
Paragraph No.9 as under :-
"9. Having considered various pronouncements of this court, the
following principles emerge, for a Court to consider when dealing
with a case involving multiple dying declarations:
9.1 The primary requirement for all dying declarations is that they
should be voluntary and reliable and that such statements should be
in a ft state of mind
9.2 All dying declarations should be consistent. In other words,
inconsistencies between such statements should be 'material' for its
credibility to be shaken
9.3 When inconsistencies are found between various dying
declarations, other evidence available on record may be considered
for the purposes of corroboration of the contents of dying
declarations.
9.4 The statement treated as a dying declaration must be
interpreted in light of surrounding facts and circumstances.
9.5 Each declaration must be scrutinized on its own merits. The
court has to examine upon which of the statements reliance can be
placed in order for the case to proceed further.
9.6 When there are inconsistencies, the statement that has been
recorded by a Magistrate or like higher ofcer can be relied on,
subject to the indispensable qualities of truthfulness and being free of
suspicion.
9.7 In the presence of inconsistencies, the medical ftness of the
person making such declaration, at the relevant time, assumes
importance along with other factors such as the possibility of tutoring
by relatives, etc. "
10. Coming to the D.Ds, in the case at hand, the frst D.D was
recorded by PW - 3 [Pandharinath Kisanrao Sasane]. He was a
Policeman and was on duty at the Police Outpost, Civil Hospital,
Beed on 13/05/2016 from 08:00 a.m. to 08:00 p.m. As he
received the MLC vide Exhibit - 78 at 09:30 a.m. in respect of
the admission of a burnt lady in Casualty Ward, he issued a
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letter at Exhibit - 79 to the Medical Ofcer to give opinion
about the condition of patient to give the statement. He along
with Medical Ofcer went to the Burn Ward where the
Deceased was admitted. The Medical Ofcer examined the
Deceased and informed that, she was not in a condition to give
statement and an endorsement to that efect was made by the
Medical Ofcer on the letter at Exhibit - 79. After half an hour
to 45 minutes, he again went to the Burn Ward with the Medical
Ofcer. The Medical Ofcer, after examining the Deceased,
informed him that, she was in a condition to give statement and
made the endorsement to that efect. Thereafter, he put some
questions to the Deceased to confrm about her condition to
give statement and as he got assured that, the Deceased was in
a condition to give the statement, he recorded her statement.
11. The further evidence of PW - 3 [Pandharinath Kisanrao
Sasane] shows that, the Deceased stated before him that, she
and her husband i.e. Appellant No.1, were demanding partition
of land, which was in the name of her father-in-law. On
13/05/2016, as there was a quarrel between her and Appellant
No.1 - husband, the Appellant No.1 slept outside the house and
she slept with her daughters. At 04:00 a.m., both the
Appellants came in the house and Appellant No.1 asked her as
to why she was demanding the partition in the land and poured
kerosene from a Can on her and Appellant No.2 ignited the
Matchstick and set her ablaze. She sufered burn injuries.
When she shouted, fve [5] to six [6] people from the Maroti
Temple came there and extinguished the fre by pouring the
water on her. Thereafter, in one Auto from village
Limbaganesh, she was taken to the Civil Hospital at Beed. He
read over the statement to the Deceased and she confrmed it
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to be true and correct and thereafter, he took her right thumb
impression and attested by his signature. The said statement
was brought on record at Exhibit - 80. After recording the
statement, the Medical Ofcer examined the Deceased and
endorsed that, she was in conscious state while giving the
statement. The MLC and statement were forwarded to the
Neknoor Police Station vide letter at Exhibit - 81. On the same
day, he issued a letter at Exhibit - 82 to the Executive
Magistrate, Beed with a request to record the statement of
Deceased.
12. The second D.D of the Deceased was recorded by PW - 5
[Vilas Vithalrao Telang], who was the Taluka Executive
Magistrate, Tahsil Ofce, Beed. On 13/05/2016 at about 12:30
p.m., he received letter at Exhibit - 82 from the Police
requesting him to record the statement of Deceased admitted
in the Civil Hospital, Beed. He went to the Civil Hospital, Beed
at 12:55 p.m. and went to the Burn Ward and inquired with the
Medical Ofcer about the Deceased. On his request, the
Medical Ofcer examined the Deceased and informed him that,
she was in a position to give the statement and an endorsement
to that efect was made on the paper. He asked the name and
place of residence to the Deceased to confrm whether she was
in condition to give the statement. After he got assured that,
the Deceased was in a condition to give the statement, he
recorded her statement.
12.1 His evidence shows that, the Deceased stated
before him that, her husband i.e. Appellant No.1, used to beat
her under intoxication. On 12/05/2016, Appellant No.1
assaulted her in the night under intoxication. She slept with her
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children. At about 4:00 a.m., Appellant No.1 poured kerosene
on her from a Can and Appellant No.2 set her blaze with the
Matchstick. She got fre and came out of the house by shouting.
Hearing her shouts, the people, who were sleeping in the
Maroti Temple, came there and poured water on her person and
extinguished the fre. In the meanwhile, both the Appellants
fled, however, they both were caught by the villagers. The
Sarpanch of village - Limbaganesh and Bibhishan admitted her
in the Hospital. She stated that, both the Appellants and her
mother-in-law were responsible for the incident. He read over
the statement to the Deceased, who admitted the same to be
true and correct. He took the right hand thumb impression of
the Deceased on the statement. The Medical Ofcer again
examined the Deceased and made the endorsement to that
efect on the statement. He signed on the statement and the
said statement was brought on record at Exhibit - 96. At
Exhibit - 97, a photocopy of the page from the register showing
the entry in respect of the said statement is brought on record.
13. The evidence of PW - 4 [Dr. Poonam Rameshwarsingh
Lodh] shows that, she was attached to the Civil Hospital, Beed
as a Medical Ofcer from July - 2015. On 13/05/2016 while she
was on duty as a Casualty Medical Ofcer from 09:00 to 03:00
p.m., the Deceased was brought in burn condition to the
Hospital at 08:40 a.m. An intimation of her admission was
given to the Medical Ofcer vide Exhibit - 78. At about 10:00
a.m., the Policemen came to the Hospital for recording the
statement of Deceased and issued a letter to her at Exhibit - 79.
She went to the Burn Ward and examined the Deceased and
found her not conscious and not able to give the statement.
She made an endorsement to that efect at Exhibit - 79. She
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informed the Policemen to come after sometimes, so the
Policemen came again to the Hospital. She again examined the
Deceased and found her to be conscious, oriented and able to
give the statement. She made the endorsement to that efect
at Exhibit - 80. Thereafter, the Police recorded the statement
of Deceased and she again examined the Deceased after
recording her statement and found her to be conscious and
oriented and accordingly, she gave the endorsement to that
efect at Exhibit - 92.
13.1 The further evidence of PW - 4 [Dr. Poonam
Rameshwarsingh Lodh] shows that, on the same day i.e.
13/05/2016, the Executive Magistrate came to the Hospital at
01:00 p.m. for recording the statement of Deceased. On his
request, she went to the Burn Ward and examined the
Deceased and found her to be conscious, oriented and able to
give her statement and so, she gave the endorsement to that
efect at Exhibit - 98. In her presence, the Executive
Magistrate put some questions to the Deceased and recorded
her statement. After recording the statement, she again
examined the Deceased and found her to be conscious,
oriented while giving the statement and accordingly, she gave
the endorsement at Exhibit - 99.
14. From the above evidence of witnesses, who recorded the
D.Ds and from the D.Ds brought on record in their evidence, it is
clear that, in both the D.Ds, the Deceased gave the time of
incident as early morning at 4:00 a.m. However, the evidence of
PW - 2 [Mahadeo Prakash Take], considered above, before the
evidence in respect of D.Ds, the time of incident given by him
was 7:00 a.m. The above evidence of PW - 4 [Dr. Poonam
13 Criappeal-675-2021.odt
Rameshwarsingh Lodh] shows that, the Deceased was brought
and admitted to the Hospital at 08:40 a.m. Her said evidence in
respect of the timing of bringing and admitting the Deceased to
the Civil Hospital Beed is fully corroborated by the MLC at
Exhibit - 78. The father of Deceased named Haribhau
Patilbuwa Disle was examined as PW - 7. His evidence shows
that, the distance between the village - Limbaganesh and the
village i.e. the house where the incident had taken place, was
two [2] kms. and the distance between the village i.e. house of
Deceased where the incident took place, and Beed was 25 kms.
From the above evidence of PW - 2 [Mahadeo Prakash Take]
and the D.Ds, it seen that, after the fre was doused, a pickup
Van was called from village - Limbaganesh and she was taken to
the Hospital. If the incident was of 04:00 a.m. and considering
the distance between the place of incident i.e. the village of
incident and the Hospital, the Hospital admission should have
to be by 05:30 to 06:00 a.m., if full latitude of time is
considered. Though, in her second D.D., it is stated that, she
was taken to the Hospital at 08:00 a.m., there is no evidence
that, after the incident, the Deceased was in the village for a
long time. In the light of the evidence of PW - 2 [Mahadeo
Prakash Take] and the evidence regarding time of admission of
Deceased to the Hospital, the version in the D.Ds that, the
incident took place at 04:00 a.m. is required to be seen with
doubt.
15. Secondly, in the frst D.D, it is stated by the Deceased
that, after dousing the fre, she was taken to the Hospital by PW
- 2 [Mahadeo Prakash Take], Bibhishan Mulik and others.
Whereas, in the second D.D, she stated that, after dousing the
fre, she was taken to the Hospital by PW - 2 [Mahadeo Prakash
14 Criappeal-675-2021.odt
Take], Bibhishan Mulik and her husband i.e. Appellant No.1
[Shahaji Ashruba Falake]. The evidence of PW - 2 [Mahadeo
Prakash Take] shows that, the Deceased was taken to the
Hospital by Appellant No.1 [Shahaji Ashruba Falake], he and one
Laxman Zanjurne. There is no reference in the frst D.D that,
one of the persons, who shifted her to the Hospital, was her
husband and on this aspect, there is inconsistency in both the
D.Ds.
16. Thirdly, in the frst D.D, it is stated by the Deceased that,
due to the night quarrel between her and Appellant No.1, the
Appellant No.1 slept outside the house. Whereas, in the second
D.D, she stated that, Appellant No.1 came in a drunken
condition and beat her during the night time. It is, thus, clear
that, there is inconsistency in both the D.Ds.
17. Fourthly, in the frst D.D, the Deceased stated that,
Appellant No.1 poured kerosene on her and Appellant No.2
ignited the fre by Matchstick. Whereas, in the second D.D, she
nowhere stated that, Appellant No.1 poured the kerosene on
her. What she has stated is that, Appellant No.1 came in the
drunken condition, beaten her the whole night and after she
went to sleep with the daughter, in the early morning at 04:00
a.m., the kerosene was poured on her person from the Can and
Appellant No.2 ignited the fre by Matchstick on her towards
her legs. This is a major inconsistency in both the D.Ds.
18. Fifthly, in both the D.Ds, the Deceased stated that, she
had grievance / complaint also against her mother-in-law, who
was arraigned as Accused No.3. In none of the D.Ds, any role is
attributed to the mother-in-law in the incident, however, she
stated of grievance / complaint against the mother-in-law.
15 Criappeal-675-2021.odt
19. Sixthly, in both the D.Ds, the Deceased has stated that,
the incident of pouring kerosene and igniting the fre took place
in the early morning at 04:00 a.m. while she was sleeping with
her daughter. There is no iota of evidence on record and it is
nobody's case that, the daughter/s of Deceased sufered any
burn injuries as she / they were sleeping with the Deceased.
Usually, the sleep at early hours of morning is profound. It is
highly improbable that, the daughter/s, who was / were
sleeping with the Deceased when the kerosene from the Can
was poured and fre was ignited, the daughter/s will go unhurt.
The daughter of Deceased is not examined by the Prosecution.
This vital aspect makes the D.Ds to be seen with doubt.
20. Seventhly, in the frst D.D, it is stated by the Deceased
that, her in-laws were residing separately. Whereas, in the
second D.D, she has stated that, she was residing with Appellant
No.1 and three [3] daughters, aged six [6] years, fve [5] years
and one [1] year. The evidence of PW - 7 [Haribhau Patilbuwa
Disle], the father of Deceased, shows that, Appellant No.1 and
Appellant No.2 were residing separately and their houses were
at the distance. If that was so, the presence of Appellant No.2
at the place of incident in the early morning at 04:00 a.m. was
not natural and the same appears to be improbable.
21. Eightly, the evidence of PW - 4 [Dr. Poonam
Rameshwarsingh Lodh], who was attached to the Civil Hospital,
where the Deceased was taken after the incident, shows that, in
IPD / admission papers of the Hospital, the history of burns was
given due to stove fre. The said Doctor volunteered that, the
history was given by the relatives of Patient. Though PW - 7
[Haribhau Patilbuwa Disle], the father of Deceased, in his
evidence deposed that, after coming to know of the incident,
16 Criappeal-675-2021.odt
he and his nephew straight away went to the Civil Hospital,
Beed and when they reached, the admission process was going
on and at the time of admission, the Deceased stated to the
Doctor that, she caught fre when she tried to take sugar and
tea, kept on the plank and caught fre as the kerosene fell on
her person. The scrutiny of the evidence of PW - 7 [Haribhau
Patilbuwa Disle] shows that, he has given contrary versions in
his examination-in-chief and the cross-examination. His
evidence is very shaky. However, the fact remains that,
according to the evidence of Doctor, the history mentioned in
the Medical Case Papers was burns, due to stove fre.
22. Ninethly, from the evidence of PW - 3 [Pandharinath
Kisanrao Sasane] and PW - 4 [Dr. Poonam Rameshwarsingh
Lodh], it is clear that, when they went to the Deceased around
10:00 a.m. after her admission, to record her statement, the
Deceased was not in a condition to give the statement.
Undisputedly, the Deceased sufered 96% burn injuries. It has
come in the evidence of PW - 4 [Dr. Poonam Rameshwarsingh
Lodh] as to what treatment was provided to the Deceased and
other relevant aspects. For the sake of clarity, we re-produce
the relevant Paragraph from the evidence of PW - 4 [Dr.
Poonam Rameshwarsingh Lodh] as under :-
"05. In case of 96% burn patient there is always dehydration. Due
to dehydration the water level in the body of the patient decrease
rapidly. Burnt patient sufer more pains in the summer season.
Such patient generally make loud shouts or murmuring. To reduce
the pains generally pain killer are given. Pethidine, morphin and
fortwin, such sedatives are given to the burnt patient. Manisha
was given Tramadol. Tramadol afects nervous system of the
patient. Due to Tramadol, patient may sufer dizziness. Fluid level
decrease due to dehydration. The level of sodium and potassium
also imbalance. Function of kidney may become weak. In case of
damage to the kidney, it afect discharge of urine output. Due to
this, some time patient may become unconscious. It is true that on
administration of sedative/pain killer to the patient, its efect
starts after about 15 minutes. Its efect remain for 6 to 7 hours.
17 Criappeal-675-2021.odt
Not true to say that during the said period patient remains
unconscious. In case the patient having burn of 96% do not get
treatment in time, the patient may went in shock. It is not true to
say that if the burnt patient become unconscious had take 6 to 7
hours to regain conscious. The patient was wrapped in a bandage.
In the case paper it is mentioned that patient had burn injuries
over right hand, left hand, right leg, left leg, back, chest, thorax,
head, neck, face and perineum. I am not able to state whether the
fngers of hands and legs were wrapped in bandage. The patient's
internal vital organ may or may not be damaged. I am not able to
state interest vital organ of patient Manisha were completely
damaged."
22.1 The further evidence of PW - 6 [Dr. Kiran Vithalrao
Sawase], who performed the Postmortem, shows that, prior to
his working at the Civil Hospital, Beed, he was qualifed as M.D
[General Medicines]. Though his evidence shows that, he was
not the Burn Specialist nor the Surgeon, the relevant aspects in
respect of the condition of Patient sufering from the burn
injuries are brought in the cross-examination. For the sake of
clarity, we re-produce the said relevant evidence as under :-
"02. I completed MD in 2014. I am not a burn specialist nor
surgeon. Lungs, heart, brain, plura, kidney, spleen, liver, pancrea,
suprarenals become congested in case of burn injury. In case of
congestion of brain, the the working capacity of the brain may
reduce. Due to congestion in liver and kidney, it may afect the
working condition of brain. I have not mentioned the description of
burn wound. I say that the burns were extensive, hence,
description is not provided. It is not mentioned in the report the
location of superfcial and deep burn injuries. In case of 96% burn
injuries, the condition of the patient since inception become
serious and critical. Sometimes burn patient may become
unconscious or feel shock. In case of burn injuries, patient may feel
difculty in breathing due to fame of fre/smoke. Burn patient
may start infection at any time. Such infection speedily increase.
Due to infection, there may be pus formation and foul smell. There
may be swelling. In postmortem report, it is not required to
mention a kind of infection. Not true to say that I had not
conducted postmortem and just signed the postmortem notes. The
deceased had sustained burn injuries to her fngers."
23. The further evidence of PW - 3 [Pandharinath Kisanrao
Sasane] and PW - 4 [Dr. Poonam Rameshwarsingh Lodh] shows
that, after sometimes, they again went to the Deceased and
18 Criappeal-675-2021.odt
found her to be in a condition to give the statement and her
D.Ds were recorded. It is, thus, clear from the evidence of these
two witnesses that, frstly, around 10:00 a.m., the Deceased was
not in a condition to give the statement and after some time i.e.
within one [1] hour, the Deceased was found to be in a position
to give the statement. In light of the above referred evidence
depicting the extent of burn injuries sufered by the Deceased
and medical condition of such Patient, the Prosecution evidence
that, while recording both the D.Ds, the Deceased was in a ft
condition to give the statement does not inspire confdence. It
is true that, it is the satisfaction of person, who records the
D.D., whether the Patient is in a ft condition to give statement,
the above medical evidence gives a clear picture of the extent
of burns sufered by Deceased and efect of such burns. In the
frst D.D, the Deceased even stated of the body parts where she
sufered the burn injuries and in the second D.D, she stated
that, after setting her ablaze, Appellant No.1 and Appellant
No.2 ran away and they both were apprehended by the villagers
and thereafter, she was taken to Hospital at 08:00 a.m. by
Appellant No.1, Bibhishan Mulik and PW - 2 [Mahadeo Prakash
Take]. Looking to the above discussed medical evidence,
showing the extent of burns and condition of such Patient,
giving such an elaborate statement in the nature of D.Ds
appears strange and thus required to be seen with doubt.
24. The further evidence of PW - 3 [Pandharinath Kisanrao
Sasane], who recorded the frst D.D, shows that, the Deceased
received burns on stomach, chest, neck, hands, legs, back and
fngers of hands and legs, though, he denied the suggestion
that, the palm of hands and legs were burnt. The medical
evidence of PW - 4 [Dr. Poonam Rameshwarsingh Lodh] shows
that, the Deceased had burn injuries over right hand, left hand,
19 Criappeal-675-2021.odt
right leg, left leg, back, chest, thorax, head, neck, face and
perineum and the Deceased was wrapped in bandage.
Considering this clear evidence in respect of the extent of burns
sufered by the Deceased and the fact that, the body was
wrapped in bandage, the evidence of PW - 3 [Pandharinath
Kisanrao Sasane] and PW - 5 [Vilas Vithalrao Telang] that they
took the right hand thumb impression of the Deceased on the
statement is required to be seen with doubt. Further, PW - 5
[Vilas Vithalrao Telang], who recorded the second D.D, admits
that, he did not attest the thumb impression on the statement.
25. Considering the above aspects as emerged from the D.Ds
and the evidence available on record, evidence in the nature of
D.Ds do not inspire confdence. Both the D.Ds are not only
inconsistent with each other on material aspects, they speak of
certain improbabilities, discussed above. It is true that, the
principle on which D.D is admitted in evidence is indicated in
the legal maxim "nemo moriturus praesumitur mentire - a man
will not meet his Maker with a lie in his mouth", it is equally
settled position under the law that, the D.D should be of such a
nature as to inspire full confdence of the Court in its
truthfullness and correctness before relying on them. As both
the D.Ds do not inspire confdence, they cannot form the basis
to convict the Appellants. It can only be considered as a mere
piece of evidence.
26. The other corroborative evidence brought on record by
the Prosecution is the Report of Forensic Laboratory showing
kerosene residues on the clothes of Appellants. The evidence
of PW - 9 [Rajendra Bhanudas Patil], the Investigating Ofcer,
shows that, Appellant No.1 was arrested on 14/05/2016 and
20 Criappeal-675-2021.odt
Appellant No.2 was arrested on 22/05/2016 and their clothes
were seized after their arrest. His evidence is silent in respect
of sealing the clothes. The evidence of PW - 8 [Raghunath
Govardhan Aatule] shows that, he was a Police Constable,
attached to the Neknoor Police Station from 2009 to 2016. On
06/06/2016, he was directed to deposit seized Muddemal in the
Crime, with Forensic Laboratory at Aurangabad and on
07/06/2016, he received the Muddemal from Mohrir with
forwarding letter and he deposited the same with the Forensic
Laboratory at Aurangabad. His evidence goes to show that,
after seizure of clothes of both the Appellants, they were with
the Police Station Mohrir for substantial days befor depositing
with the Forensic Laboratory. Under such circumstances, the
said CA Report indicating kerosene residues on the clothes of
Appellants loses its signifcance.
27. Perusal of the Judgments relied by the learned A.P.P
show that, the said decisions were based on the facts,
circumstances and evidence available on record in the
respecitve cases. Considering the facts, circumstances and the
evidence available on record in the case in hand do not inspire
confdence and cannot lead to form the basis to hold that, the
Charge is established. When the D.Ds fall short of inspiring
confdence, the other evidence takes the case of Prosecution
no further. On re-appreciation of the evidence available on
record, as discussed above, it is not possible to confrm the
conviction and sentence awarded by the learned Trial Court
against the Appellants and the same is liable to be quashed and
set aside. Hence, we proceed to pass the following order :-
21 Criappeal-675-2021.odt
ORDER
[I] Criminal Appeal is allowed.
[II] The Judgment and Order dated 07/12/2021, passed by the
learned Additional Sessions Judge, Beed, in Sessions Case
No.87/2016, convicting the Appellants for the ofence
punishable under Section 302 r/w Section 34 of I.P.C and
sentencing them to sufer simple Imprisonment for life with
fne of Rs.5,000/-, in default, to sufer simple Imprisonment
for six [6] months, is quashed and set aside.
[III] The Appellants stand acquitted for the ofence punishable
under Section 302 read with Section 34 of I.P.C.
[IV] The Appellants are behind the bars. They be released, if not
required in any other ofence.
[V] Record and Proceedings be sent back to the learned Trial
Court.
28. Criminal Appeal is disposed of accordingly.
[NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]
Sameer
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 11/03/2025 17:10:07
